Category: Mindfulness

Gender Differences in Punishment: b.Sanhedrin 45

Today’s daf starts with things that are quite difficult to talk about: stoning procedures. I’m not going to flinch away from this, though, because to this day, about half of U.S. states have elaborate execution protocols that might masquerade as being more humane, but actually hide a multitude of botched executions. We have to openly discuss state-sanctioned death, no matter how much we now medicalize executions and tuck them behind closed doors, they are part and parcel of our legal system at present. While the talmudic discussion feels cold and crass, it’s important to remember that it was theoretical: not only did they have no power to execute people, and they were reminiscing, but it is also highly unlikely that executions were very common during the Sanhedrin time. So much of this is speculation about execution proceedings that might harken to biblical times.

Anyway, the amoraic discussion starts with a quote from a mishna, according to which the proceedings for preparing condemned men and women for stoning differ: either the woman is a bit more covered up than the man or the man is completely naked and the woman is not. From here on, the sages matter-of-factly turn to examining the differences in procedure. Their point of departure is Leviticus 24:14, the provenance of the whole stoning debacle, where the text refers to a male transgressor and does not, seemingly, allow for the stoning of a female transgressor. This, however, contrasts with the text in Deuteronomy 17:5, which refers to both genders as candidates for stoning: “And you shall bring forth that man or that woman… and stone them with stones until they die.” And if this wasn’t distressing enough, here’s where things take an even uglier turn.

לְמֵימְרָא דְּרַבָּנַן חָיְישִׁי לְהִרְהוּרָא, וְרַבִּי יְהוּדָה לָא חָיֵישׁ לְהִרְהוּרָא? וְהָא אִיפְּכָא שְׁמַעְנָא לְהוּ, דִּתְנַן: הַכֹּהֵן אוֹחֵז בִּבְגָדֶיהָ – אִם נִקְרְעוּ נִקְרְעוּ, וְאִם נִפְרְמוּ נִפְרְמוּ, עַד שֶׁמְּגַלֶּה אֶת לִבָּהּ וְסוֹתֵר אֶת שְׂעָרָהּ. רַבִּי יְהוּדָה אוֹמֵר: אִם הָיָה לִבָּהּ נָאֶה לֹא הָיָה מְגַלֵּהוּ, וְאִם הָיָה שְׂעָרָהּ נָאֶה לֹא הָיָה סוֹתְרוֹ.

The Gemara asks: Is this to say that the Rabbis are concerned that the sight of a naked woman will arouse sexual thoughts among the onlookers, and Rabbi Yehuda is not concerned about such sexual thoughts? But didn’t we hear them say just the opposite, as we learned in a mishna (Sota 7a) with regard to a sota, a woman suspected of adultery by her husband, and who was made to undergo the ordeal of the bitter waters: And the priest grabs hold of her clothing and pulls it, without concern about what happens to it. If the clothes are torn, they are torn; if the stitches come apart, they come apart. And he pulls her clothing until he reveals her heart, i.e., her chest. And then he unbraids her hair. Rabbi Yehuda says: If her heart was attractive he would not reveal it, and if her hair was attractive he would not unbraid it. This seems to indicate that it is Rabbi Yehuda who is concerned about the sexual thoughts of the onlookers.

The concern, you see, is that onlookers might find the spectacle of a naked woman, even as she is on the verge of execution, sexually arousing. And the gemara seems to think this was Rabbi Yehuda’s concern in finding that women should be stoned fully clothed: analogizing from another biblical punishment, the forcing of bitter waters on an adulterous woman, they seem to think that the humiliation is part of the spectacle and want to prevent it becoming a sideshow. But wait, there’s more:

אָמַר רַבָּה: הָתָם הַיְינוּ טַעְמָא, שֶׁמָּא תֵּצֵא מִבֵּית דִּין זַכָּאָה וְיִתְגָּרוּ בָּהּ פִּירְחֵי כְּהוּנָּה. הָכָא הָא מִקַּטְלָא. וְכִי תֵּימָא: אָתֵי לְאִיתְגָּרוֹיֵי בְּאַחְרָנְיָיתָא? אָמַר רַבָּה: גְּמִירִי, אֵין יֵצֶר הָרָע שׁוֹלֵט אֶלָּא בְּמִי שֶׁעֵינָיו רוֹאוֹת.

Rabba said: There, in the case of a sota, this is the reason that Rabbi Yehuda says that the priest does not reveal the woman’s chest or unbraid her hair: Perhaps the sotawill leave the court having been proven innocent, and the young priests in the Temple who saw her partially naked will become provoked by the sight of her. Here, in the case of a woman who is stoned, she is killed by being stoned, and there is no concern about the onlookers’ becoming provoked after her death. The Gemara comments: And if you would say that the fact that she is killed is irrelevant to their having sexual thoughts because the onlookers will be provoked with regard to other women, this is not a concern, as Rabba says: It is learned as a tradition that the evil inclination controls only that which one’s eyes see.

Rabba is distinguishing between the bitter waters issue and the stoning issue, arguing that the latter spectacle is unlikely to sexually provoke men after death in the same way that the bitter waters spectacle for adulteresses is. Indeed, in trying to resolve the contradiction, Rava explains that in the case of the adulteress, part of the sentence includes chastening and disgrace, whereas for a stoned woman, the stoning in itself is the disgrace:

דְּרַבָּנַן אַדְּרַבָּנַן נָמֵי לָא קַשְׁיָא. אָמַר קְרָא: ״וְנִוַּסְּרוּ כׇּל הַנָּשִׁים וְלֹא תַעֲשֶׂינָה כְּזִמַּתְכֶנָה״. הָכָא, אֵין לְךָ יִיסּוּר גָּדוֹל מִזֶּה.

Rava continues: The contradiction between one ruling of the Rabbis and the other ruling of the Rabbis is not difficult either. With regard to a sota, the verse states that other women should be warned: “Thus will I cause lewdness to cease out of the land, that all women may be chastened not to do like your lewdness” (Ezekiel 23:48). In order to serve as an example and warning to other women, a woman suspected of adultery must undergo public disgrace, and therefore the concern about the sexual thoughts that her partially naked body might arouse is disregarded. Here, with regard to stoning, you have no chastening greater than seeing this stoning itself.

Lest you might think that these concerns about the public spectacle of executing women is unique to the gemara, the issue of gender in corporal punishment is present in all cultures. When Malcolm Feeley and I worked on our social history project, we were investigating a phenomenon that Malcolm, along with Deborah Little, uncovered when they studied sentencing in the Old Bailey: the gradual disappearance of the female offender. They discovered that, over the course of the long Nineteenth century, the numbers women, who used to be about half (sometimes more) of the convicts in court, begin to considerably dwindle. This cannot be explained away solely through the disappearance of offenses typically enforced against women (witchcraft, infanticide, adultery, etc.), by the return of men from war, or by the presence of more dominant male accomplices. When I joined the project, we expanded the historical inquiry to cover other countries: France, the Netherlands, Belgium, Germany. We found the same things, even as different regions differed in terms of local wars (that would remove the men from the list of potential offenders/defendants).

We came to the conclusion that the disappearance of female offenders was probably a combination of two shifts. The first was a decline in women’s opportunities to commit crime due to a change in patriarchal style, from public to private. While patriarchal regimes are present since antiquity (as today’s daf proves), women were very much part of the life of the market, the public square, etc. We have Medieval and Renaissance and Early Modern accounts of women as business proprietors, mixed in with the underworld. But the industrial revolution ushers a domestication of middle-class women and a gender segregation of working-class woman into gendered factories and into domestic service in households, which would reduce their opportunities for mixing up in scenarios that involve property crime, etc. The second factor in the decline, we hypothesized, was a decline in public willingness to drag women into the limelight of the criminal process, except in some sensationalized cases. Our colleague Lucia Zedner believes that some of this reflects a “bad-to-mad” shift, where women’s transgressions are medicalized and pathologized rather than medicalized. And our colleague Nicola Lacey documents the increasingly disempowered description of women offenders in period literature. There seems to be an idea that echoes the talmudic sages’ concerns – a notion that it is somehow unchivalrous to publicly criminalize and punish women, which is echoed by criminological theories from the 1950s and 1960s.. But then, Rav Nachman quotes Rabba bar Avuh as stating that minimizing the suffering of condemned women is more of a universal principle, stemming from our care for one another:

וְכִי תֵּימָא: לֶיעְבֵּיד בַּהּ תַּרְתֵּי? אָמַר רַב נַחְמָן אָמַר רַבָּה בַּר אֲבוּהּ: אָמַר קְרָא ״וְאָהַבְתָּ לְרֵעֲךָ כָּמוֹךָ״ – בְּרוֹר לוֹ מִיתָה יָפָה.

And if you would say that two forms of chastening, both stoning and humiliation, should be done to her, Rav Naḥman says that Rabba bar Avuh says: The verse states: “You shall love your neighbor as yourself” (Leviticus 19:18), teaching that even with regard to a condemned prisoner, select a good, i.e., a compassionate, death for him. Therefore, when putting a woman to death by stoning, she should not be humiliated in the process.

But what counts as “a beautiful death” is malleable, and might encompass some gender differences–particularly about the question whether the priority is to minimize public humiliation (e.g., a dignified death) or corporal sufering (e.g., a painless death). And isn’t this exactly the sort of thing that animates our endless litigation and public debate about what can strip death of its “cruel and unusual” features, supposedly making it “kind and usual”?

לֵימָא: דְּרַב נַחְמָן תַּנָּאֵי הִיא? לָא, דְּכוּלֵּי עָלְמָא אִית לְהוּ דְּרַב נַחְמָן, וְהָכָא בְּהָא קָמִיפַּלְגִי: מָר סָבַר בִּזְיוֹנֵי דְאִינִישׁ עֲדִיף לֵיהּ טְפֵי מִנְּיָחָא דְגוּפֵיהּ, וּמָר סָבַר נְיָחָא דְגוּפֵיהּ עֲדִיף מִבִּזְיוֹנֵיהּ.

The Gemara suggests: Let us say that whether one rules in accordance with the statement of Rav Naḥman is a dispute between tanna’im, and according to Rabbi Yehuda there is no mitzva to select a compassionate death. The Gemara refutes this: No, it may be that everyone agrees with the opinion of Rav Naḥman, and here they disagree about this: One Sage, i.e., the Rabbis, holds: Minimizing one’s degradation is better for him than seeing to his physical comfort, i.e., than minimizing his physical pain. Therefore, the Rabbis view the more compassionate death as one without degradation, even if wearing clothes will increase the pain of the one being executed, as the clothes will absorb the blow and prolong his death. And one Sage, Rabbi Yehuda, holds that one’s physical comfort is better for him than minimizing his degradation, and therefore the one being executed prefers to be stoned unclothed, without any chance of the clothing prolonging his death, even though this increases his degradation.

The gemara then proceeds to discuss stoning procedures designed to minimize suffering and raise accountability, e.g., requiring the incriminating witnesses to cast the first stone and thus take responsibility for the outcome of their actions. But the notion that humanizing death is a consequence of loving another as one own can be difficult to swallow. And yet, ever since capital punishment litigation eroded to a point of having protracted, sanitized discussions of whether to use one injection or three, this or that chemical, aren’t we essentially engaging in the same exercise to this day? The fact that the death penalty is on its last legs in the U.S. (I still think so, even with the current administration) makes its last bites especially vicious.

Recanting Witnesses: b. Sanhedrin 44

Most of today’s daf addresses the stoning of Achan during the conquer of the city of Ai, with the sages debating the gravity of his sins, the collective punishment, and the method of execution. This digression is apropos the previous page’s focus on execution procedures. At the end of the page, though, the sages return to matters of postconviction review. What happens if a person declares, on the verge of being executed, that he is innocent?

As habeas corpus connoisseurs know, a claim of actual innocence, even when accompanied by proof, is not immediate grounds for reversal. In Herrera v. Collins, Chief Justice Rehnquist wrote a blood-curdling majority opinion according to which executing a man who makes a claim of innocence based on new evidence does not violate the Eighth Amendment unless some constitutional violation is stated. The only thing actual innocence can do for you is excuse your procedural default, your failure to raise proper arguments in previous hearings (in other words, actual innocence overcomes the Cause and Prejudice threshold test for even entering the habeas process.) In Schlup v. Delo, a man pursued habeas relief for his conviction of the death of a fellow inmate on the word of two corrections officers who had witnessed the murder. But on habeas, Schlup wanted to introduce a videotape from a surveillance camera showing him at a different location in the prison at the time of the murder. Because the videotape evidence had not been presented at trial, ordinarily Schlup would have been barred from presenting it on habeas; but because of his persuasive claim of actual innocence, this initial barrier was removed.

How would someone arguing actual innocence fare before the Sanhedrin? Not that great, as it turns out:

תָּנוּ רַבָּנַן: מַעֲשֶׂה בְּאָדָם אֶחָד שֶׁיָּצָא לֵיהָרֵג. אָמַר: אִם יֵשׁ בִּי עָוֹן זֶה, לֹא תְּהֵא מִיתָתִי כַּפָּרָה לְכׇל עֲוֹנוֹתַי. וְאִם אֵין בִּי עָוֹן זֶה, תְּהֵא מִיתָתִי כַּפָּרָה לְכׇל עֲוֹנוֹתַי, וּבֵית דִּין וְכׇל יִשְׂרָאֵל מְנוּקִּין, וְהָעֵדִים לֹא תְּהֵא לָהֶם מְחִילָה לְעוֹלָם. וּכְשֶׁשָּׁמְעוּ חֲכָמִים בַּדָּבָר, אָמְרוּ: לְהַחְזִירוֹ אִי אֶפְשָׁר, שֶׁכְּבָר נִגְזְרָה גְּזֵירָה. אֶלָּא יֵהָרֵג, וִיהֵא קוֹלָר תָּלוּי בְּצַוַּאר עֵדִים.

The Sages taught: An incident occurred involving a person who was being taken out to be executed after having been convicted by the court. He said: If I committed this sin for which I am being executed, let my death not be an atonement for all my sins; but if I did not commit this sin for which I am being put to death, let my death be an atonement for all my sins. And the court that convicted me and all the people of Israel are clear of responsibility, but the witnesses who testified falsely against me will never be forgiven. And when the Sages heard this, they said: It is impossible to bring him back to court and reconsider the verdict, as the decree has already been decreed. Rather, he shall be executed, and the chain of responsibility for his wrongful execution hangs around the necks of the witnesses.

This chilling story involves a man who claims, albeit without evidence, that he is innocent. He’s given up hope of justice emerging for him at the last minute, and expresses his willingness to face death for other sins he might have committed, but launches a last-words accusation against the witnesses who perjuted themselves to incriminate him. The man from the story is echoed, almost word for word, by Herrera, who before his 1993 execution said: “I am innocent, innocent, innocent. And something very wrong is happening tonight.”

Chief Justice Rehnquist would have found some likeminded friends among the Bavli sages. The gemara continues to ask whether it isn’t obvious that a claim of innocence without proof could not lead to a reversal of judgment. But the sages continue to state that, even in the face of witnesses recanting testimony, the execution decree stands:

פְּשִׁיטָא, כֹּל כְּמִינֵּיהּ? לָא צְרִיכָא דְּקָא הָדְרִי בְּהוּ סָהֲדִי.

The Gemara asks: Isn’t it obvious that he should be executed? Is it in his power to have his sentence overturned just because he says he is innocent? The Gemara answers: No, it is necessary to state that the condemned man is executed even when the witnesses retracted their testimony.

The reason for this is a classic appeal to finality:

וְכִי הָדְרִי בְּהוּ, מַאי הָוֵי? כֵּיוָן שֶׁהִגִּיד, שׁוּב אֵינוֹ חוֹזֵר וּמַגִּיד! לָא צְרִיכָא, דְּאַף עַל גַּב דְּקָא יָהֲבִי טַעְמָא לְמִילְּתַיְיהוּ, כִּי הָהוּא מַעֲשֶׂה דְּבַעְיָא מֹכְסָא.

The Gemara asks: Even if the witnesses retracted their testimony, what of it? It is still clear that the condemned man is to be executed, as the halakha is that once a witness has stated his testimony, he may not then state a revision of that testimony. In other words, a witness’s retraction of his testimony has no validity. The Gemara answers: No, it is necessary to state that the condemned man is executed even when the witnesses retracted their testimony and gave an explanation for having lied in their initial statement. This is like that incident involving Ba’aya the tax collector, where it was discovered that witnesses had falsely accused the son of Rabbi Shimon ben Shataḥ in revenge for the son’s having sentenced to death for sorcery the witnesses’ relatives.

Why would the Talmud not make room for recanting witnesses to disavow their perjured testimony in time? One can glean two reasons. First, there is the matter of incentivizing witnesses to tell the truth; providing incriminating testimony has consequences in the real world, which people don’t like to face. In the second season of the podcast Proof, Jacinda Davis and Susan Simpson interview the people who testified against Jake Silva at his trial for the murder of Renée Ramos. It’s clear from the interviews that these witnesses, teenagers themselves at the time, were pressured by the police, and didn’t quite know what they were talking about. Yet when prodded to consider the consequences of their testimony–two likely wrongful convictions, Ty murdered behind bars, Jake incarcerated for decades and savagely attacked by another prisoner–they are embarrassed and evasive, as if they don’t want to confront the consequences. Having the consequences play out is harsh, to say the least, and it is a lesson for everyone else to do the right thing.

The second reason has to do with undermining the credibility of the witnesses. The gemara takes the trouble to state that the sentence still stands even after the witnesses provide an explanation for their perjury. This is a tough pill to swallow, and it is a grim reminder of the injustice of the Troy Davis case, in which seven of the nine prosecution witnesses recanted, citing police coercion. But when one now says that they lied before, without cross examination or a court proceeding to examine their veracity, what can we say about their credibility now in light of their lack of credibility then? Where one stands on these matters might correlate quite a bit with one’s position on the spectrum between Packer’s Due Process and Crime Control models. Due Process fans will urge to halt the execution, reopen the proceeding, hear the recanting witnesses, and see what’s what. Crime Control fans will urge an end, at some point, to the proceedings, so that closure can begin. Most of us are somewhere along that spectrum.

daf yomi executions habeas corpus perjury Talmud

Postconviction Finality and Innocence Claims: b.Sanhedrin 43

Today’s daf continues the conversation about capital punishment via stoning. There are several things of interest, including a blood-curdling description of arguments between Jesus’ disciples and the Sanhedrin regarding their execution (I can see this stuff being used to corroborate the blood libel stuff from Matthew). But there’s also an interesting dispute about finality of postconviction review.

When Herbert Packer wrote The Limits of the Criminal Sanction, the Warren Court was hard at work reforming and federalizing constitutional protections for suspects and defendants by incorporating the Bill of Rights against the states. Witnessing this revolution, Packer contrasted two theoretical models: the Crime Control model, which prioritized efficiency and case management, and the Due Process model, which prioritized quality control and the prevention of mistakes. The latter represented the historical processes that Packer saw unfold during the incorporation process.

One important aspect of the contrast was the changing approach to finality. The Crime Control model operates under the assumption that the police and prosecution probably got it right (Packer calls this “the presumption of guilt”) and thus no corrective postconviction processes will be necessary. The Due Process model, by contrast, aims at providing opportunities to reverse wrongful convictions, opening up appellate and habeas corpus proceedings. Indeed, during the 1960s, the federal habeas corpus writ was widely expanded to accommodate reviews of state criminal convictions. But the post-Warren courts, informed by a Crime Control logic, proceeded to narrow the reach of habeas, by limiting the sort of cases that could be subject to review, the kinds of arguments one could make, and the retroactive application of new rules (here’s a good history of the whole thing.)

The balance between finality and truth is a tough one to strike. On one hand, the collective nightmare of the criminal process is a wrongful conviction, and the worst of the worst is the execution of an innocent person. On the other hand, endlessly dragging the criminal process is torturous to everyone, including the victims, when the delays are just an exploitation of the system. So how do we know when to set the limit?

The first issue that comes up is the question of argument. What happens if one of the Sanhedrin students wants to make an exculpatory argument but cannot?

בְּעָא מִינֵּיהּ רַב אַחָא בַּר הוּנָא מֵרַב שֵׁשֶׁת: אָמַר אֶחָד מִן הַתַּלְמִידִים ״יֵשׁ לִי לְלַמֵּד עָלָיו זְכוּת״, וְנִשְׁתַּתֵּק, מַהוּ? מְנַפַּח רַב שֵׁשֶׁת בִּידֵיהּ. נִשְׁתַּתֵּק? אֲפִילּוּ אֶחָד בְּסוֹף הָעוֹלָם נָמֵי! הָתָם לָא קָאָמַר, הָכָא קָאָמַר. מַאי?

§ Rav Aḥa bar Huna asked Rav Sheshet: If one of the students sitting before the judges said: I can teach a reason to acquit him, and he became mute and cannot explain himself, what is the halakha in such a case? Does the court take heed of his words, or do they disregard him? Rav Sheshet waved his hands in scorn and said: If the student became mute, the court certainly does not pay attention to him, as were the court to concern themselves with what he said, they would have to be concerned even that perhaps there is someone at the end of the world who can propose an argument in the condemned man’s favor. The Gemara rejects this argument: The cases are not similar. There, no one said that he had a reason to acquit the condemned man. Here, the student already said that he had a reason to acquit the condemned man. The question, therefore, is appropriate. What is the halakha in such a case?

In other words, if we were to pay attention to every claim: “The condemned man is innocent!” without any reasoning, we would never be able to execute anyone, as we would have to account for the possibility that others–maybe even at the end of the world–want to cry out about innocence without explaining. The sages try to draw an analogy to a situation in which the student wanted to make exculpatory arguments and then died:

תָּא שְׁמַע, דְּאָמַר רַבִּי יוֹסֵי בַּר חֲנִינָא: אֶחָד מִן הַתַּלְמִידִים שֶׁזִּיכָּה וָמֵת, רוֹאִין אוֹתוֹ כְּאִילּוּ חַי וְעוֹמֵד בִּמְקוֹמוֹ. זִיכָּה – אִין, לֹא זִיכָּה – לָא.

The Gemara suggests: Come and hear an answer: As Rabbi Yosei bar Ḥanina says: In a case where there was one of the students who argued to acquit the defendant and then died, the court views him as if he were alive and standing in his place and voting to acquit the defendant. The implication is that if he argued to acquit the defendant and explained his reasoning, yes, the court counts his vote as if he were still alive. But if he did not actually argue to acquit the defendant, but only said that he wished to propose such an argument, his vote is not counted as though he were still alive.

Here, too, the logic is that a mere exclamation without reasoning does not count as a vote to acquit; but if the exculpatory arguments were made prior to the student’s death, we have an indication as to their merit and take them into account. One might think about the many delayed habeas cases in which people who were sitting on exculpatory evidence retired or died–including, for example, someone else confessing to the crime. The sages are conflicted about what to do in this scenario.

זִיכָּה – פְּשִׁיטָא לִי; אָמַר – תִּיבְּעֵי לָךְ.

The Gemara rejects this proof: If the student argued to acquit the defendant, it is obvious to me that he should be counted among those favoring acquittal. But if he only says that he wishes to propose such an argument, let the dilemma be raised whether or not he should be regarded as having presented a convincing argument in favor of acquittal. The question is left unresolved.

Another possible analogy has to do with situations in which the condemned man himself wishes to present exculpatory evidence, and here we see the sages erring on the Due Process side, by allowing the defendant several rounds of appeal, even if the arguments he makes on his own behalf are not very strong:

אֲפִילּוּ הוּא כּוּ׳. וַאֲפִילּוּ פַּעַם רִאשׁוֹנָה וּשְׁנִיָּה? וְהָתַנְיָא: פַּעַם רִאשׁוֹנָה וּשְׁנִיָּה, בֵּין שֶׁיֵּשׁ מַמָּשׁ בִּדְבָרָיו בֵּין שֶׁאֵין מַמָּשׁ בִּדְבָרָיו – מַחְזִירִין אוֹתוֹ. מִכָּאן וָאֵילָךְ, אִם יֵשׁ מַמָּשׁ בִּדְבָרָיו – מַחְזִירִין אוֹתוֹ, אֵין מַמָּשׁ בִּדְבָרָיו – אֵין מַחְזִירִין אוֹתוֹ.

The mishna teaches: And even if he, the condemned man himself, says: I can teach a reason to acquit myself, he is returned to the courthouse even four or five times, provided that there is substance to his words. The Gemara asks: And is the halakha that there must be substance to his words even the first and second time that the condemned man says that he can teach a reason to acquit himself? But isn’t it taught in a baraita: The first and second times that he says that he can teach a reason to acquit himself, they return him to the courthouse and consider whether there is substance to his statement or there is no substance to his statement. From this point forward, if there is substance to his statement they return him to the courthouse, but if there is no substance to his statement, they do not return him. This appears to contradict the mishna.

It looks like the first appeal/review is granted to the condemned person regardless of the strength of his arguments. But from the second appeal onward, the gemara details a process for investigating the merit of the person’s claims:

אָמַר רַב פָּפָּא: תַּרְגּוּמַהּ מִפַּעַם שְׁנִיָּה וְאֵילָךְ.

Rav Pappa said: Explain that the mishna’s ruling applies only from after the second time forward, that from that point on we examine whether there is substance to his words.

מְנָא יָדְעִי? אָמַר אַבָּיֵי: דְּמָסְרִינַן לֵיהּ זוּגָא דְּרַבָּנַן. אִי אִיכָּא מַמָּשׁ בִּדְבָרָיו – אִין, אִי לָא – לָא.

The Gemara asks: How do we know whether or not there is substance to his words? Abaye said: If the condemned man has already been returned twice to the courthouse, we send a pair of rabbis with him to evaluate his claim. If they find that there is substance to his statement, yes, he is returned once again to the courthouse; if not, he is not returned.

But if that’s the case, why not conduct an investigation on the merits to begin with? The gemara demonstrates some psychological finesse here: the first appeal, at least, could be a desperate act, rather than a reasoned argument for innocence, and there are good grounds to encourage empathy and propriety and signal to the public that the court is open to reconsider even if it turns out that the argument is meritless. But afterwards, merits have to be assessed so as not to waste the court’s time:

וְלִימְסַר לֵיהּ מֵעִיקָּרָא? אַגַּב דִּבְעִית, לָא מָצֵי אָמַר כֹּל מַאי דְּאִית לֵיהּ.

The Gemara asks: But why not send a pair of rabbis with him from the outset, even the first time, and have them make an initial assessment of his claim? The Gemara answers: Since a man facing execution is frightened by the thought of his impending death, he is not able to say all that he has to say, and perhaps out of fear he will be confused and not provide a substantial reason to overturn his verdict. Therefore, the first two times he is returned to the courthouse without an initial examination of his arguments. Once he has already been returned on two occasions, the court allows for no further delay, and they send two rabbis to evaluate his claim before returning him a third time.

The issue of the optics of justice also comes up in discussing the mishna regarding an announcement of executions. The mishna requires not only announcing the time and place of the stoning, but also the details of the offense, including the place and time, so that any people with information that can impeach the prosecution’s witnesses can come forward with exculpatory evidence:

מַתְנִי׳ מָצְאוּ לוֹ זְכוּת – פְּטָרוּהוּ, וְאִם לָאו – יוֹצֵא לִיסָּקֵל. וְכָרוֹז יוֹצֵא לְפָנָיו: ״אִישׁ פְּלוֹנִי בֶּן פְּלוֹנִי יוֹצֵא לִיסָּקֵל עַל שֶׁעָבַר עֲבֵירָה פְּלוֹנִית, וּפְלוֹנִי וּפְלוֹנִי עֵדָיו. כׇּל מִי שֶׁיּוֹדֵעַ לוֹ זְכוּת יָבֹא וִילַמֵּד עָלָיו״.

MISHNA: If, after the condemned man is returned to the courthouse, the judges find a reason to acquit him, they acquit him and release him immediately. But if they do not find a reason to acquit him, he goes out to be stoned. And a crier goes out before him and publicly proclaims: So-and-so, son of so-and-so, is going out to be stoned because he committed such and such a transgression. And so-and-so and so-and-so are his witnesses. Anyone who knows of a reason to acquit him should come forward and teach it on his behalf.

גְּמָ׳ אָמַר אַבָּיֵי: וְצָרִיךְ לְמֵימַר בְּיוֹם פְּלוֹנִי, וּבְשָׁעָה פְּלוֹנִית, וּבְמָקוֹם פְּלוֹנִי. דִּילְמָא אִיכָּא דְּיָדַעי וְאָתֵי וּמַזֵּים לְהוּ.

GEMARA:Abaye says: And the crier must also publicly proclaim that the transgression was committed on such and such a day, at such and such an hour, and at such and such a place, as perhaps there are those who know that the witnesses could not have been in that place at that time, and they will come forward and render the witnesses conspiring witnesses.

This is where we get into the fraught and painful matter of Jesus’ death sentence. Much of the antisemitic animus against Jews comes from the Gospel of St. Matthew, where Pontius Pilate, the Roman governor who ordered Jesus’ execution, essentially relies on the Sanhedrin’s judgment. The Talmud does not disabuse its readers of this version of the events. Jesus is presented as an inciter, but contrary to the New Testament view of a revolutionary, here he is presented as someone with strong connections with the Roman government, someone whom the Sanhedrin is somewhat wary of:

וְכָרוֹז יוֹצֵא לְפָנָיו. לְפָנָיו – אִין, מֵעִיקָּרָא – לָא. וְהָתַנְיָא: בְּעֶרֶב הַפֶּסַח תְּלָאוּהוּ לְיֵשׁוּ הַנּוֹצְרִי, וְהַכָּרוֹז יוֹצֵא לְפָנָיו אַרְבָּעִים יוֹם: ״יֵשׁוּ הַנּוֹצְרִי יוֹצֵא לִיסָּקֵל עַל שֶׁכִּישֵּׁף וְהֵסִית וְהִדִּיחַ אֶת יִשְׂרָאֵל. כׇּל מִי שֶׁיּוֹדֵעַ לוֹ זְכוּת יָבוֹא וִילַמֵּד עָלָיו״. וְלֹא מָצְאוּ לוֹ זְכוּת, וּתְלָאוּהוּ בְּעֶרֶב הַפֶּסַח.

The mishna teaches that a crier goes out before the condemned man. This indicates that it is only before him, i.e., while he is being led to his execution, that yes, the crier goes out, but from the outset, before the accused is convicted, he does not go out. The Gemara raises a difficulty: But isn’t it taught in a baraita: On Passover Eve they hung the corpse of Jesus the Nazarene after they killed him by way of stoning. And a crier went out before him for forty days, publicly proclaiming: Jesus the Nazarene is going out to be stoned because he practiced sorcery, incited people to idol worship, and led the Jewish people astray. Anyone who knows of a reason to acquit him should come forward and teach it on his behalf. And the court did not find a reason to acquit him, and so they stoned him and hung his corpse on Passover eve.

אָמַר עוּלָּא: וְתִסְבְּרָא? יֵשׁוּ הַנּוֹצְרִי בַּר הַפּוֹכֵי זְכוּת הוּא? מֵסִית הוּא, וְרַחֲמָנָא אָמַר: ״לֹא תַחְמֹל וְלֹא תְכַסֶּה עָלָיו!״ אֶלָּא שָׁאנֵי יֵשׁוּ, דְּקָרוֹב לְמַלְכוּת הֲוָה.

Ulla said: And how can you understand this proof? Was Jesus the Nazarene worthy of conducting a search for a reason to acquit him? He was an inciter to idol worship, and the Merciful One states with regard to an inciter to idol worship: “Neither shall you spare, neither shall you conceal him” (Deuteronomy 13:9). Rather, Jesus was different, as he had close ties with the government, and the gentile authorities were interested in his acquittal. Consequently, the court gave him every opportunity to clear himself, so that it could not be claimed that he was falsely convicted.

In other words, even though his crimes were severe, the Gemara states, every opportunity was awarded to try and acquit him so that no claims of wrongful conviction could be made later. Of course, we all know that these claims were not only made, but also bolstered by centuries of religious polemics, so the supposed effort at due process was ultimately unsuccessful. But disturbingly, these paragraphs suggest that the perception of Jesus’ supposed crimes was not only political, but also religious.

Even more disturbingly, the words מֵסִית הוּא (“he is an inciter”) can be interpreted in several different ways. The most benign one is that the evidence for his guilt was great. The less benign one was that his threat to the legitimacy of the Sanhedrin was so great that it could be thought appropriate to make an exception to the due process/postconviction rules. There is a whole mine of religious controversy that can emerge from all this, and the page goes on to describe the arguments between his students and the Sanhedrin in court. Tomorrow’s discussion continues on with all this, raising the question of confessions before executions.

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Postconviction Review: The Scarf-and-Horseback Edition (b.Sanhedrin 42b)

Welcome to a new blog feature, in which I chat about a cool, unusual, or edifying bit from the daf yomi. Originating in the 1920, “daf yomi” is a Jewish learning regimen for the Babylonian Talmud, in which every day Jews from all over the world learn the same page. The Daf Yomi webpage, Hebrew text resource Sefaria, and many other resources can point you to the day’s page. I don’t always love this method–it can lead to speeding through some interesting stuff while spending more time on things that are less exciting–but I do find it appealing to be on a general calendar of learning with the rest of the Jewish world, across diverse denominations, beliefs, orientations, values, and methods.

One of the things that I find most appealing about Talmudic study is a logical approach to perennial problems of justice and ethics, and today’s page is no different. The last few days’ worth of pages find us in Tractate Sanhedrin, which addresses various law, adjudication, procedure, and evidence problems, which are of course of special interest to me. Pages 41-42 are concerned with issues involving evidentiary contradictions, the value and weight of testimonies, and issues involving last-minute halting of executions.

Readers who find this material crass might be comforted with the reminder that the Bavli is not an accurate historical record of criminal proceedings. Writings from the Second Temple era confirm the existence of the Sanhedrin, a high court within the Hasmonean empire and beyond (seated as a “big” Sanhedrin of 71 or a “little” Sanhedrin of 23–election proceedings dissected in the early pages of the tractate), but the extent to which it regularly issued judgments of life and death are dubious. The Talmud itself refers to the rareness of executions (saying that a Sanhedrin that ordered executions once every seventy years would be regarded as hovlanit, trigger-happy). By the time the Babylonian Talmud coalesces, it has been centuries since an actual Sanhedrin was convened, so a lot of this stuff is best understood as using scriptural anchors to elaborate on legal logic, rather than as a description of proceedings before real tribunals.

Anyway, Sanhedrin 42b turns to issues of executions, describing matters as follows:

אֶחָד עוֹמֵד עַל פֶּתַח בֵּית דִּין, וְהַסּוּדָרִין בְּיָדוֹ, וְסוּס רָחוֹק מִמֶּנּוּ כְּדֵי שֶׁיְּהֵא רוֹאֵהוּ. אוֹמֵר אֶחָד: ״יֵשׁ לְלַמֵּד עָלָיו זְכוּת״, הַלָּה מֵנִיף בְּסוּדָרִין, וְהַסּוּס רָץ וּמַעֲמִידָן. וַאֲפִילּוּ הוּא אוֹמֵר: ״יֵשׁ לִי לְלַמֵּד עַל עַצְמִי זְכוּת״, מַחֲזִירִין אוֹתוֹ, אֲפִילּוּ אַרְבַּע וְחָמֵשׁ פְּעָמִים, וּבִלְבַד שֶׁיֵּשׁ מַמָּשׁ בִּדְבָרָיו.

One man stands at the entrance to the court, with cloths [vehasudarin] in his hand, and another man sits on a horse at a distance from him but where he can still see him. If one of the judges says: I can teach a reason to acquit him, the other, i.e., the man with the cloths, waves the cloths as a signal to the man on the horse, and the horse races off after the court agents who are leading the condemned man to his execution, and he stops them, and they wait until the court determines whether or not the argument has substance. And even if he, the condemned man himself, says: I can teach a reason to acquit myself, he is returned to the courthouse, even four or five times, provided that there is substance to his words.

This passage offers a few curiosities. Beyond the obvious drama of the whole thing, note that it is assumed that the folks inside the court will continue debating the matter of the convict’s guilt even as the convict has already been taken to the place of execution. Is this an academic issue for them, which merits continued discussion? Does it have to do with the previous issue of disagreeing about the contradictions between the prosecution’s witnesses? And how long does the horseback rider have to stand there waiting for the courtroom reporter, if you will, to come out waving the scarf? What happens if the court changes its mind, and the reporter desperately waves the scarf, but it’s too late? What happens if it’s not too late, but the horseback rider doesn’t see the scarf?

Another interesting thing about this passage is the implication that the execution takes place far away from the court. Much of the daf tries to find biblical anchoring for the distance from Moses-time justice, but there is also some commentary that suggests practical logic:

אִין, כִּדְקָאָמְרַתְּ. וְהָא דְּקָתָנֵי הָכִי, נָפְקָא מִינַּהּ דְּאִי נָפֵיק בֵּי דִינָא וְיָתֵיב חוּץ לְשָׁלֹשׁ מַחֲנוֹת, עָבְדִינַן בֵּית הַסְּקִילָה חוּץ לְבֵית דִּין, כִּי הֵיכִי דְּלָא מִיתְחֲזֵי בֵּית דִּין רוֹצְחִין. אִי נָמֵי, כִּי הֵיכִי דְּתִיהְוֵי לֵיהּ הַצָּלָה.

The Gemara answers: Yes, it is as you said, that the place of stoning was outside the three camps. And the practical difference from the fact that the mishna teaches the halakha in this manner is that if it happened that the court went out and convened outside the three camps, even then the place of stoning is set up at a certain distance from the court, and not immediately adjacent to it, so that the court should not appear to be a court of killers. Alternatively, the reason the place of stoning must be distanced from the court is so that the condemned man might have a chance to be saved, i.e., so that during the time it takes for him to be taken from the court to the place of stoning someone will devise a claim in his favor.

In other words, there are several reasons for setting the place of execution at a distance. One of them has to do with the optics of the court as a place of compassion. It’s not a nod at any modern notion of separation of powers; rather, it is the idea that associating adjudication with execution is unsavory and can lead to antipathy and, possibly, undermining of the court’s authority/legitimacy. The other one is precisely to facilitate the scarf-to-horseback method of postconviction review, which implies that people might still be working in the condemned’s interest even after the sentence is pronounced.

Having taught postconviction review and exonerations in law school, this stuff makes me think of the last-minute horrors that happen every time an execution approaches. Last-minute appeals, desperate litigation, petitions to the Governor, etc. Three years ago we marked a decade from the execution of Troy Davis, a man who many believe (and believed back then, as well) to be innocent of the crime. I remember collecting signatures to send to the Governor of Georgia to spare Troy’s life and holding a sit-in at my office about the case. In the years after Davis’ conviction, seven of the nine witnesses against him recanted, stating that they were subjected to police coercion, and persuasive evidence emerged that another man–the initial suspect–had committed the crime and, in fact, confessed to it. Not a shred of physical or forensic evidence connected Davis to the crime. We were unsuccessful and Davis was executed.

Even those saved by the “wave of the scarf” at the last minute have to endure disbelief, humiliation, and–when their compensation lawsuits fail–penury. One examples is John Thompson, who was convicted of a robbery and an unrelated capital murder in Louisiana; the crucial piece of evidence collected at the crime scene was a blood sample, which was never tested, and whose existence remained hidden from the defense for eighteen years, until a month before Thompson’s execution, when a PI working for the defense uncovered it. The blood did not match Thompson’s and he was exonerated. He was later unsuccessful in receiving compensation from the state, with the majority opinion claiming that no Brady violation had happened because the untested blood sample was not exculpatory evidence. Thompson wrote a searing op-ed to the New York Times about his experiences:

In 2005, I sued the prosecutors and the district attorney’s office for what they did to me. The jurors heard testimony from the special prosecutor who had been assigned by Mr. Connick’s office to the canceled investigation, who told them, “We should have indicted these guys, but they didn’t and it was wrong.” The jury awarded me $14 million in damages — $1 million for every year on death row — which would have been paid by the district attorney’s office. That jury verdict is what the Supreme Court has just overturned.

I don’t care about the money. I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued.

Worst of all, I wasn’t the only person they played dirty with. Of the six men one of my prosecutors got sentenced to death, five eventually had their convictions reversed because of prosecutorial misconduct. Because we were sentenced to death, the courts had to appoint us lawyers to fight our appeals. I was lucky, and got lawyers who went to extraordinary lengths. But there are more than 4,000 people serving life without parole in Louisiana, almost none of whom have lawyers after their convictions are final. Someone needs to look at those cases to see how many others might be innocent.

If a private investigator hired by a generous law firm hadn’t found the blood evidence, I’d be dead today. No doubt about it.

A crime was definitely committed in this case, but not by me.

One only wishes that, rather than basking in the self-appeasement of having done no wrong, these officials, and those who worked with them, vigorously and unceasingly, desperately and demonstrably, waved the scarf so that any distant horseman, on any hill, would see them on time.

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Not the New Jerusalem: American Political Development and the Jewish Experience

A few years ago, I felt like I was struck by lightning when I read Malcolm Feeley’s opening keynote address at a conference, published in the Boston Law Review. Along with many interesting ideas, Feeley tackles a perennial question in punishment studies–namely, American exceptionalism. How can we be the only Western industrialized country that has retained the death penalty? How can we be the world leader in mass incarceration, leaving Western industrialized countries so far behind?

A seasoned comparative political thinker, with a mind that quickly traverses time and place, Feeley rejects American exceptionalism as a framework for discussing these questions. Instead, he joins forces with a valuable perspective in political science, American Political Development, which seeks to strip American political science scholarship from its rosy-eyed, idealized perspectives on America, and look at it instead through the same rigorous methodologies that we use to study other countries in the world.

The best way to explain the standpoint of American Political Development is to remember a wonderful column Joshua Keating used to write for Slate called If It Happened There, in which Keating covers current events as we would if they had happened in a foreign country. This, for example, is how Keating covered SCOTUS in 2016:

The nine unelected justices who sit for lifetime terms on the Supreme Court are tasked with ensuring that laws passed by the democratically elected government don’t violate the ancient juridical texts upon which the country’s laws are based. As such, they wield immense powers and have the ability to overrule even the president himself. The aged, scholarly jurists, cloaked in long black robes, conduct their deliberations behind closed doors, shielded from the scrutiny of the media, and their most important decisions are often released to the public with great drama but little warning.

When we read this text, it’s worth asking ourselves: what makes it funny? It will ruin the joke, but it will bring about greater understanding. Can you tell the slightly smug, condescending, patronizing voice, the disrespect for the country’s sanctified constitution, etc.? This is the tone we use to talk about those whom we consider “less than.”

It’s no coincidence that Keating wrote some of his best columns during the first Trump administration, when it was easy to patronizingly lampoon the looney-tunes headlines and the eau-de-banana-republic was especially pungent. By now we’re used to it, and it’s probably no coincidence that I’m writing this on January 21, 2025, a day after we were treated to this word salad. Thing is, the more used to are to this, the more ridiculous and quaint it seems to wonder why the U.S. seems so out-of-step with Western Europe. If anything, the fair question is: why not compare the U.S. to countries that share more similarities with it?

This is exactly the question Feeley raises in his keynote speech, and he answers it in true APD fashion: it’s not that America is unique – it’s that we’ve been comparing it to the wrong type of country. North America is best understood in comparison to… South America. We’ve tended to view North America as part of the “global North”, contrasted to “the global South,” the latter typically characterized by political instability, high level of interpersonal violence, wide gaps in income, and painful histories of slavery and racial oppression. But an unflinching gaze at the U.S. can’t but lead to the conclusion that, as Feeley explains, “by many of the indicators I have set out above, the United States is ranked well below Western Europe, and toward the Latin American end of the spectrum.” Incidentally, this sort of diagnosis led me elsewhere to speculate that Israel’s tendency to borrow, and sometimes adopt, ineffective–and sometimes outright destructive–criminal justice trends from the U.S. stems not from the latter being a good role model, but from the pathologies the two countries share: you guessed it, political instability, high levels of interpersonal violence, a history of colonialism and infighting, wide gaps in income, an abundance of weapons in civilian hands, and a legacy of police overreach and abuse excused as a national security imperative.

What does all of this have to do with Jewish experiences and Jewish thought? At HUC rabbinical school (which we started earlier this month to great fanfare, hooray! What an excellent program and amazing classmates!), we’ve just started taking American Jewish Thought with Prof. Michael Marmur. Our journey started with the question whether there is something idiosyncratic, different, unique, about the Jewish experience–and Jewish thought–in America.

In the 1950s, when American exceptionalism was a dominant perspective in political science, it extended to a variety of contexts, one of them being the Jewish experience in America. Ben Halpern wrote a famous 1955 essay titled “America Is Different” (later to appear in his book), in which he identified certain idiosyncrasies about American Jewry compared to Europe. American Jewry, Halpern argued, was younger (it had celebrated its tricentennial in the 1950s, and the bulk of immigration and institutions dated only to the 19th century); it did not have to face an emancipatory struggle as in European countries, as there was never a divisive moment involving Jews in America. Assimilation happened within one generation, which meant no long “culture of the ghetto” evolved. And any development of Zionism or anti-Zionism occurred against this backdrop, rather than against the backdrop of nationalistic antisemitism as in Europe.

Some of these points are well taken, and were echoed (in more nuanced tones) by later commenters. For example, in How America Met the Jews, Hasia Diner, who by no means hails the U.S. as a “new Jerusalem,” does point to a few idiosyncrasies, again, through a comparison to Europe. First, she points to the centrality and nature of immigration to America–en masse and, at least regarding its critical mass, over a relatively short period of time. Second, the nation’s enduring obsession with color, where Jews don’t quite fit the framework through which race, racism, and race scholarship operate. Third, American materialism, which is linked to its economic materialism, as a way to assimilate and advance. Fourth, the American religious landscape, which by default and design fostered the existence of multiple denominations–of Jews and of everyone else (which created egalitarian opportunities for women in Jewish congregations where none were available elsewhere in the world). And fifth, the two-party system in America’s political life.

Others, however, critiqued these perspectives to point out that the wholesale comparison between the U.S. and Europe is too generalized and does not acknowledge variation across space and time. Tony Michels, for example, points out that comparing one country to an entire continent makes no sense; indeed, comparing the Jewish experience in the U.S. to that of cities such as Odessa and St. Petersburg reveals scenarios that evince similar degrees of independence and success. Michels also argues that many of the rosier accounts of Jewish assimilation minimize the levels and vehemence of American antisemitism, which was far from negligible, sometimes violent, and certainly destructive when considering America’s inaction during WWII. Even the idea of an immediate emancipation as unique has its detractors: David Sorkin identifies times and places in which “port Jewry” experienced similar rapid assimilation and relative success, as well as places within the U.S. where state law affirmed and cemented institutional antisemitism (e.g., job and education caps).

Reading Michels and Sorkin made me think of APD and of Feeley’s alternative comparison. There are valid points made on behalf of exceptionalism and on behalf of similarities between U.S. Jewish experiences and perspectives in other times and places in Europe. But what if the problem is that we’ve missed out on a far more relevant, and useful, comparison–that is, again, between North and South America?

Here are some similarities that might have an important impact on assimilation, immigration experience, political and theological ideologies, etc. North and South America include many countries with legacies of slavery, colonialism, and civil war that did not involve Jews in any meaningful way. As is the case with the U.S.’s obsession with color and race, and the painful enduring legacy of slavery and the Civil War, many South American countries experienced violent struggles for liberation from the European metropoles, which bore strong elements of indigenous rights. The Americas did not experience a full-blown holocaust, though the specter of escaped Nazis hiding in Brazil and Argentina would be a factor here, and in both parts of the continent there was a critical mass of people arrived from Europe with the legacy of the Holocaust. In many of these countries, the Jewish newcomers could not be calibrated or perceived according to the existing racial hierarchies and benefitted from being coded white, or at least non-native; and all these countries have legacies of political violence and police overreach, as well as bouts of scary unrest, which can be alarming to immigrants and incentivize people to color within the lines in their adopted countries.

I thought that having grown up in Ecuador and Barbados, and experienced the Jewish community there through my dad’s performing rabbinical functions de facto in those places and others, made the South American comparison more salient for me, but it turns out (of course) that I was not the only one. In his fantastic book The Seventh Heaven, Ilan Stavans offers a travelogue/ethnography of the diverse Jewish experience in Latin America, which includes in-depth analysis of specific places and times that defy the “new Jerusalem” narrative. In the introduction to his book, he talks candidly about how Trump’s ascent (and the parallel animus on the left) resembled other global developments:

There are, of course, important differences (aren’t there always? if everything were the same, would we even need analogies?), and I think many of them are a factor of scale. The U.S. has the second-largest concentration of Jews in the world, whereas the numbers of Jews in South American countries are much smaller. Institutionally speaking, this means Jews in the U.S. can organize and speak more effectively than in South America. There’s also the fact that the ubiquity and prominence of mainstream Protestant Christianity in the U.S. impacts how other religions (including Judaism) are practiced, whereas in Latin America the dominant culture is Catholic Christianity (with some important syncretic elements). But I still think the comparison is worthwhile, and I plan to keep it in mind whenever I feel myself succumbing to the delusion that what is happening here is nonpareil and special. In some ways, of course it is. But unique features do not mean that there is nothing to learn from other times and places–in criminal justice, in theology, in political thought.

American Jewish Thought comparativism huc Judaism

The Acquisition of Skill: Gran Turismo (2023)

Happy New Year!

To take a breather from a hectic schedule teaching a concentrated course at Tel Aviv University, and to celebrate the completion of my book manuscript Behind Ancient Bars, finishing my GTU degree, and the beginning of my rabbinical studies at Hebrew Union College, I stayed at my beautiful aiirBnB this morning to watch the 2023 film Gran Turismo. I was surprised by how moving and thought provoking I found the film, given that I know absolutely nothing about formula racing and have no talent or taste for fast stuff (even in my open water racing days, it was always about endurance rather than speed). The film’s cinematography is breathtaking, using different kinds of drones and real race cars driven by real race drivers to bring one right into the heart of the action. But the film’s message has something important and valuable to say about the acquisition of skill, the question of proficiency/literacy in a new field, and the extent to which simulation practice translates to real-world competence.

The plot of Gran Turismo loosely adapts the astonishing true story of Jann Mardenborough, an adolescent aficionado of the eponymous racing game. Surrounded by people who undervalue his choice to spend much of his leisure time playing the game at home, Jann is astonished to receive a once-in-a-lifetime invitation to GT Academy, a marketing collaboration between Nissan and Playstation that offers the strongest gamers worldwide the opportunity to turn into real-life racecar drivers. It’s an attractive scheme, which at first seems like a fool’s errand–a shortcut into an expensive elite sport; the conventional path for the world’s fastest involves many miles behind the wheel, as well as obscene expenditures. Unsurprisingly, folks who took the long and expensive way in resent the SIM drivers, who are perceived as having taken shortcuts into the racing world. But Jann and his fellow gamers do not see it that way: they logged tens of thousands of hours at their consoles, at home and at gaming cafés, and they know how to race–at least in theory.

What they find out on the track surprises them. Driving an actual car calls for a high level of athletic fitness, the ability to endure g-forces that rival (and sometimes exceed) flying airplanes, and the clarity to strategize and commit to laser-fast action under extreme pressure and high temperatures. Not everyone who excels in gaming also makes it in the real machine, but Jann and a few others make it into the professional racing circuit. After a few real-life races, Jann qualifies for his FIA license, continuing his career for the Nissan team and accomplishing unbelievable feats, including podium finishes in some of the most challenging race courses worldwide.

The movie does not shy from the sobering reality that the feel-good story in which the underdogs overcome adversities and exceed expectations is also a story of having one’s accomplishments digested into a slick marketing campaign in the context of an absurdly expensive sport. But even within this context, it raises thorny questions about the acquisition of expertise. Having now sat through numerous academic appointment cycles, I see again and again how people tend to value their own path and undervalue, or misunderstand, other people’s accomplishments; being a foreigner with a nonstandard education on the US market was an exercise in excelling and overperforming to overcome doubt and unfamiliarity, and having been in this business for 25 years I can empathize with aspiring professionals who try to figure out how to make their own paths and accomplishments translatable to other environments. I wish I could propose a screening of this film at all first meetings of appointments committees around the world to encourage people to have an open mind and develop a better sense of smell for excellence–we are all prone to doubt when confronted with a set of unfamiliar skills. I also appreciated that, despite the film’s subtle notice of issues of race and class–an important comment in the context of an elite, inaccessible sport–the focus was on objective, measurable excellence. Say what you will, and with a great degree of truth, that in car racing money and resources translate to speed–ultimately, whoever is fastest wins the race.

The main source of doubt throughout the film surrounds the path to competence. At an NBC interview, Mardenborough said: “There’s a saying — you do 10,000 miles of anything, you become an expert. . . Racing drivers, their traditional route, their 10,000 miles, is done in karting. My 10,000 miles was done on ‘Gran Turismo’ and racing games.”

I first encountered the 10,000-hour idea in Malcolm Gladwell’s book Outliers, a gift from a former student, and even though this turns out to be considerably lowballed, especially for classical musicians, the notion that extensive hours over a long period of time separate the wheat from the chaff makes a lot of sense to me. I read with great interest Twyla Tharp’s The Creative Habit and Geoff Colvin’s Talent Is Overrated, and both made me think that approaching the task of training/practicing wisely and consistently with gusto and grit matter a lot more than natural gift. I see in my son, who has a marvelous raw talent for sports and athletics, that springing those talents into the world only takes one so far; the idea that he has to put in a lot of elbow grease to get good at something is anathema to him and, from what I hear from fellow parents, for many other kids. It’s hard to sell a child on the idea that anything worth doing well requires, not to put too fine a point on it, sucking at it for a very long time. It’s also hard to explain the jagged path to success and acclaim which, from my experience in swimming, weightlifting, singing, and playing several instruments, involves long and frustrating periods of plateau even after you get good enough to actually enjoy your skill, which you can only break out of by switching up your practice game. Once I called the Rich Roll Podcast, asking Rich, an extremely accomplished ultra-triathlete, how to break into multisport from endurance swimming when most triathletes come from cycling/running backgrounds. His advice was remarkably in tune with the message of Tharp and Colvin: “If you’re an endurance swimmer,” he said, “you already know how to suffer. . . learning how to cycle is just spending a lot of time on the saddle.” That Rich’s advice didn’t take for me, and I did not ultimately become a competitive triathlete, is because I didn’t spend the requisite time and couldn’t find the tolerance for sucking at road bikes for long enough to stop sucking. But I did embrace, later in life, the idea of sucking at weightlifting, and here we are, deadlifting 160 lbs a year in at 50 years of age.

But back to Mardenborough, who took an unconventional path toward that success: his proverbial time in the saddle, as he explained, took place in a simulation, not in an actual car. This makes me wonder a lot about activities we foster in law school, such as mock trials, and the simulations I teach my own students. As part of my Criminal Procedure: The Adjudicative Process course, I conduct several exercises in which the students receive what looks like a real case and have to negotiate a plea bargain, pick a jury, or even use the Federal Sentencing Guidelines to calculate someone’s sentence. While these things can foster legal skills that are greatly relevant to the practice of law, they are insufficient preparation for the real world, and the best our students can do, I think, is to spend as much time as they can doing clinical work. This stuff was almost unheard of when I was a law student in the mid-1990s, and I’m glad we have such terrific offerings at law schools. Negotiating a plea based on paper has much lower stakes (a grade) than the responsibility of holding the fate of another person in your hands, and gradually imparting the gravitas of this responsibility is something we must do a lot of, and already do, in legal education.

It also made me think a lot about starting at HUC’s inaugural Virtual Pathway cohort. I’m very happy that our curriculum involves a lot of hands-on work as student-rabbis in actual congregations, and I hope my placement proves to be a great spot. In some ways, I feel I’ve already been thrown into the deep end–the first Jewish ritual I officiated solo was my beloved father’s funeral. After that, co-officiating a Shabbat ritual with Rabbi Copeland at Sha’ar Zahav was an undertaking, but a joyous one, and I felt very supported. I can tell, though, that even though I like, and have facility with, liturgy, ritual, music, and putting together content, time in the saddle is going to be of vast importance for success at this new vocation over time, and I am very eager to start putting in the first of my proverbial 10,000 hours doing it.

If one of your New Year Resolutions is getting better at a skill or a vocation, I really recommend watching Gran Turismo and giving your own path and strategy serious thought. It’s a short life, but digging deep, rewarding wells is a worthwhile way to spend it.

Truly Social

During our recent family vacation we spent three hours in an outrigger canoe on Big River (and you can do the same). It was the morning after Thanksgiving. The river was glassy-smooth and a deep sense of calm descended on all three of us, to the point that even our boisterous boy piped down, listening to the gentle splash of oars in the water and the occasional birdsong.

Canoeing in a river will reduce distractions and slow down cognition to the point that one notices small things: a bid perched on an old tree, harbor seals sunning themselves on the river bank, slippery river otters slinking into the water, grebes diving for fish. I want to notice such things in my surroundings.

Back at the inn, I read Jaron Lanier’s Ten Arguments for Deleting Your Social Media. I found them even more persuasive in 2024, when the online cacophony is crowding my brain and impairing my ability to think freely. It feels like all these corporations try to do is upset me or try to sell me something, or a combination of both, which dovetails nicely with Cory Doctorow’s excellent analysis of the enshittification of online platforms. I’m persuaded. Today I’m disengaging from all social media for the time being, and we’ll see how that impacts my quality of life, mental acuity, emotional availability, and priorities.

The plan is to replace this fake socialization with true socializing, one on one, with people I know and enjoy; invest effort in my neighborhood and local community; and spend some of it on solo pursuits like my fitness, music, and reading. And, of course, on my family, who deserve me at my best. I will continue to blog, and I wonder how being removed from the turmoil of social media will impact where my interests go or how this platform evolves.

Learning to Read Again

On the heels of finishing the manuscript for my next book, Behind Ancient Bars, we’re taking a much-needed Thanksgiving break in Mendocino. The breathtaking vistas and calm atmosphere are an opportunity to rest, lift, swim, play, and read at a different pace, one I have missed lately while working and studying full time.

One thing I’m doing on this break, whenever some downtime is available, is reading. From an actual book, not from a screen. It is a sensation I have missed and longed for, and yet it feels unfamiliar and not as easy as it was in my childhood. A few times during my GTU journey we were encouraged by our professors–and rightly so–to print out the materials and read them on paper or to purchase the books in hardback or paperback. I’m sorry to say I didn’t always take them up on their invitation to engage with the text in a more tactile way, for a simple reason: I commute by bicycle and train and carrying a lot of books or printed paper with me is much more of a chore than carrying a MacBook Air. It’s true that reading from a screen opens the door to online distractions, and even though I use software that locks down the worst offenders, the temptation nags at me. Believe me, the irony of typing about this onscreen for people to read onscreen, and also the irony of teaching using an electronic casebook, have not escaped me, but the convenience can’t be beat–nor can the price, in the case of multiple hefty textbooks.

While here, though, I’ve started to read Maryanne Wolf’s Reader, Come Home, about the impact that digital reading and engagement has on our cognitive process. She focuses mostly on children, because they don’t have the analog background that us “olds” do, but honestly, after decades of working on a screen, I know exactly what she’s talking about. It feels like the synapses in my brain have changed to accommodate a completely new way of thinking, and I miss some aspects of my old cognitive ways. I’m finding the printed page challenging to engage with. My mental acuity, focus, and concentration are not what they were, and it’s probably not just aging–it’s aging while living digitally.

There are a bunch of things that remind me that I’m aging. Layers of superfluous stuff are being shed. Comfort in my own skin takes precedence. My faith in knowing The Truth (or that it can even be known, or held exclusively by one group or one side) has eroded, and I’m more comfortable asking questions and listening. Chronic conditions and issues start amassing, things that need attention. More and more precious people are gone, more lights are dimmed, and a lot of new stuff fades into irrelevance. Alongside these things comes an urgency to preserve and improve my mental acuity, and a big part of that is to learn to read again off a printed page, redevelop long-term concentration, and choose what and how I read intentionally and with care.

I’m especially enjoying reading new takes and angles on classic works that have accompanied my life. Being a big lover of Jane Austen, I Appreciated Ruth Wilson’s The Austen Remedy, and I now enjoy engaging with works that expand and challenge my view of the classics: Jo Baker’s Longbourn, which tells the Pride and Prejudice story from the perspective of the servants, and Claudia Gray’s mystery series featuring the second generation of some Austen characters. Along the same lines, I’m enjoying Percival Everett’s James, which retells the Huckleberry Finn story from the wry, witty, and compassionate perspective of Jim, the enslaved man who is so infantilized and ridiculed in the original. Same deal with Barbara Kingsolver’s Demon Copperhead, which sheds a Dickensian light on some of the poor of this land (my new book engages with Bleak House and with Oliver Twist, so I have a new fondness for seeing how these perennial stories play out in different times and places). Charles Finch’s mystery novels are a delight to revisit. And I’m enjoying revisiting the flawed and complex heroes at the heart of Ann Cleves’ mystery novels: the Matthew Venn and Vera Stanhope series. I’m also enjoying reading about natural history–especially about trees and mushrooms–and about the impact of music, exercise, art, the outdoors, etc., on the human mind and body.

It was interesting to think about reading on page and off page when taking the Dead Sea Scrolls class. Most of my classmates, who are not native Hebrew speakers, challenged themselves–and did admirably–with the Hebrew text (with no nikud). To take on an equivalent challenge, I tried to read each scroll in the original, which is to say, from a digital imaging of the original papyrus. It’s still a screen, of course, but it made some of the experience palpable in the sense that it provoked the excitement of looking at words that another person wrote by hand. I want to invite that challenge, and that pleasure, back into my cognition this year.

I’m not sure yet how to balance this with the convenience (and ecological prudence) of reading things offscreen without printing them out. Perhaps I can resolve to read on paper whenever I read for pleasure or whenever a book is assigned (and will purchase the physical book, rather than its Kindle rendition).

The Oddness of Race Cheating

In 2011 I swam a 10k race in the Applegate lake in Oregon. It was a four-lap race around a circular course of buoys that spanned a big chunk of the lake. Open water races with repeated laps are psychologically difficult–at least, for me–because, when you’re already exhausted, it’s really difficult to rally your spirits and override the morosity of “here we go AGAIN.” I remember finishing the third lap near what would eventually be the finish line–the wind had changed directions and intensified by then, and every stroke was a challenge–and thinking, “if I came out of the water now, who would know?” It was the sort of cognitive miasma that tends to hit, at least for me, at about 75% of the race–though sometimes it takes the form of what am I doing here? Why am I doing this? Normal people are just waking up for brunch. Who does this? Willingly? By the time the Oregon race rolled around, I was a fairly experienced open water swimmer (though new to marathons), and I already knew negative self-talk for what it was. When your brain starts vomiting garbage at you during an endurance race, if you know yourself well enough to expect it, you can identify the poisonous thought in your mind, like the Buddha greeting the demon Mara. I like to say to myself, “hello, Darkness, my old friend.” Usually it evaporates right away. Thing is, it would never occur to me–not in a million years–to actually exit the water after three laps of a four-lap race unless I was injured and intended to report as DNF right away. Not because I’m such a virtuous person–far from it–but because what would be the point? Didn’t I sign in to swim 10k? Why would I want to swim 7.5k and claim I swam 10k? what’s to be gained? And how would I look myself in the eye in the mirror later?

A couple of years later, a few of us were chatting over at the Marathon Swimmers Forum, and someone mentioned that he had overheard two (presumably) triathletes at the start line of that same race casually chatting about how they intended to only swim two or three laps, depending on how they felt like. We all found this very jarring, especially given how difficult it is to police open water races as it is. Everyone looks the same in the water with their race caps on, and no one is particularly invested in dogged surveillance of some particular dude, out of hundreds of others, getting out of the water a couple of laps earlier than he should.

This whole incident came back to mind when I read today’s article on Shvoong, an Israeli news source for everything endurance/adventure. Apparently, some guy ran the Ha-Yarkon Park Half Marathon wearing his own bib on his chest but keeping his friend’s bib in his pocket. Since this guy also happened to be very fast–he ran the race in 1:15–the ghost runner who “paced” him aroused suspicion, and the guy ended up confessing.

The interesting bit was that the story went viral in the online running community, and this guy actually replied to the post:

“Hi everyone, I’m commenting here because I think it’s about me. I ran with my chest bib according to the rules. In addition, there was an extra kit for a guy who could’t participate in my pocket. Out of my misunderstanding, I took the whole thing lightly, in perspective, without thinking too much about my ‘crime’. I learned this Friday from veterans in the running community that I wasn’t behaving with sportsmanlike ethics. I take full responsibility for my actions. I certainly learned from this and won’t do it again. I wish everyone quiet days.”

Later on, the same runner answered another commenter and expanded: “I’ll honestly say that, thanks to this incident, I learned a lot from veteran runners about the athletic unfairness, deeply, about what I’ve done… I tried to write something about my mistake/silliness/stupidity without hurting colleagues… I take full responsibility. I admit it was purely wanting to help a friend’s goal, who also did not understand the severity of the deed and I didn’t think it was such “deception” or immoral. The most important thing for me is that I learned from it and understood deeply the meaning of what I’d done. By the way, my results were disqualified as well and I’m glad justice was done.”

I find this absolutely fascinating, both as an athlete and as a criminologist. On one hand, true remorse is rare to find and difficult to identify, and if that’s what this is, then all’s well that ends well. On the other hand, how can a fairly fast runner–someone who finishes a half in 1:15 has (literally!) been around the block many times–fail to fully grasp the fundamental unfairness of what he’s done? Is it not plainly obvious that the concept of a race is that everyone competes under equal conditions? Have we not witnessed decades of quibbling over costumes, shoes, prosthetics, etc., in races to understand how important it is to keep athletic competitions fair? What’s there to misunderstand here?

The story sent me down a rabbit hole and I found out that marathon cheating is extremely common, to the point that a man named Derek Murphy has made it his life’s mission to catch the cheaters. The article expresses the same mystification I have with cheating; the only way to understand someone like Rosie Ruiz, the infamous Boston Marathon cheater, is to assume some form of individual clinical pathology. But the Ottawa Citizen ran a phenomenal in-depth story on marathon cheating, in which Jonathan Lasnier, a University of Ottawa sports psychologist, offers additional possibilities:

“Somebody can be task-oriented, and another can be ego-oriented,” he says. It’s the ego-oriented people who tend to be the cheaters. Rather than run the race for the sake of running it, “they will use other reference criteria to evaluate their competence,” says Lasnier. “They will focus more on the other people instead of themselves, and they will define success as superiority over others.”

Their mentality seems to be this: “when winning is everything, it is worth doing anything to win,” says Lasnier. But surely, not everyone who is motivated by ego and vanity is given to cheating? Surely there are some moral narcissists out there?

Lasnier says that it comes down to more personal factors. “I think it depends on your identity as an individual,” he says. A hypothetical: “Let’s say you’re an athlete and your identity is solely based on the fact that you are an athlete, and you want to perform and want to show competence toward others, because it’s the only thing in your life that’s supporting your identity. I think this can be dangerous, in a way.”

To Lasnier’s analysis I would add that the stakes of any given event are not the same for all people. Open water marathoners swim marathons because that’s what they do. But triathletes, like the two anonymous cheats that my friend overheard at the Applegate lake, probably register for open water races as prep for triathlons, which is the sport they really care about. They might have thought of the race as a nice opportunity to train for the swim leg and didn’t give a shit about the fact that the rest of us swam for time. Is it selfish? Sure. Does it reflect a common sort of solipsism, where you are only preoccupied with yourself and your goals and everyone else sort of fades into the background? Probably.

Similarly, someone who runs a marathon for time–for the sake of that very race–has a very different mentality than someone who runs it to qualify for another marathon (say, Boston). Indeed, one of the ways Derek Murphy catches Boston qualifier cheats is by comparing their qualifying time to the time they actually logged in Boston. This raises the inevitable question whether these people really believe that faking their results would produce an astonishing performance in Boston. To qualify for Boston, a woman my age (in the 50-54 age group) has to run a marathon in 3:50:00. In 2022, I ran the Oakland Marathon in about 5:15 (I’m slow and my knee caved in at mile 19). Wouldn’t it be weird if I qualified for Boston in less than four hours, only to run the actual race in more than five?

Still, if Lasnier is right, maybe the answer lies not so much in psychopathology but in sociology. I’m thinking specifically of Gresham Sykes and David Matza’s classic article Techniques of Neutralization (1958). Sykes and Matza wrote the article during a golden age of scholarly interest in juvenile delinquency, making a revolutionary (for its time) argument: juvenile delinquents do not have some warped sense of values and moralities that are opposed to ours. Indeed, they are on board with “our” (the supposedly law-abiding middle-class folks that Sykes and Matza envisioned as their audience) basic notions of justice and fairness. They therefore argued that “much delinquency is based on what is essentially an unrecognized extension of defenses to crimes, in the form of justifications for deviance that are seen as valid by the delinquent but not by the legal system or society at large.”

Sykes and Matza identify five such justifications: denial of responsibility (e.g., “it was an accident!”), denial of injury (e.g., “I just borrowed their car, what’s the big deal” or “they have insurance”), denial of the victim, (e.g., “that shop owner had it coming!” or “he had no business coming on to me at the pub”), condemnation of the condemners (e.g., “rich people steal all the time by evading taxes”), and appeals to higher loyalties (e.g., “I had to help my mom pay the bills.”)

The article itself is not based on empirical evidence, but rather on secondary observations of other people’s research, which are not without their flaws. Sykes and Matza do not consider, for example, the possibility that the interviewees might have actually held opposing values, but chose to explain what they had done in terms that they thought would appeal to their interviewers. And even though it is easy to see that these techniques of neutralization are framed in a way that does lend them persuasive purchase (after all, the question of damages, for example, is central to the disposition of tort cases, and the question of higher loyalties is fundamental to the necessity defense), it is not entirely clear why different people draw the line in different places on what seems to be persuasive. The Ha-Yarkon park runner, for example, relied on some of these: “I didn’t intend to” is a denial of responsibility; “I didn’t think anyone else was harmed” is a denial of injury and victim, and “I wanted to help a friend” is an appeal to higher loyalties. It doesn’t seem that folks bought his rationale, and his contrition does appear to reflect a sense of deeply buying into a set of norms that were, previously, extrinsic to him.

This is quite a sobering week to think about this stuff. First of all, it’s quaint to consider that, in 1958, a major innovation in criminology would have been to argue that delinquent teenagers are “just like us,” holding similar values and feeling guilt and shame, on a week in which the American people have voted for a man who still holds fast to the 1980s superpredator theory of juvenile delinquency (and who still openly and proudly espouses that the emblems of that flawed theory, the Central Park Five, who were exonerated by DNA evidence years ago, were guilty; they are suing him.) I have my own theories and opinions about the election, but the last thing we all need, I think, is more tiresome punditry about that, so I’ll keep it to myself. But in the spirt of “what is old is new again,” it’s interesting to consider that Sykes and Matza were writing against the grain of many delinquency scholars of their time in arguing that we share values in common even with people who appear to be doing things we all oppose, i.e., crime. Most people in the field at the time might as well have thought that folks of a different class and subculture lived on a different moral planet. I’d like to think, like Leonard Nemoy’s Spock in Star Trek, that there are always possibilities, and the coming years will provide ample opportunities to explore them.

Narrative and Counternarrative in Religious Strife: The Wacky Story of “Toledot Yeshu”

This month I’m very lucky to be taking a demo class at Hebrew Union College with the awesome AJ Berkowitz, whose research focuses on Jewish life between the Alexander the Great conquests (ca. 332 BCE) and the rise of Islam (ca. 622 CE). The course, called The World of the Rabbis, examines rabbinical engagement with the surrounding cultures and narratives. Which is how I came across a wacky, offensive medieval book called Toledot Yeshu (“the chronicles of Jesus”).

Toledot Yeshu is a mockery of the gospels, and it’s an instructive exercise to compare it to, say, Matthew. It is by no means the first example of a counternarrative designed to offend and undermine people of a different faith; Prof. Berkowitz reminded us of Apion’s revisionist history of the Exodus, as an example. What stands out immediately is how Toledot Yeshu revisits Jesus’ parentage and birth story. This undermines a crucial aspect of the Gospels – the whole story revolves around Jesus’ divinity, the virgin birth, etc. Instead, Joseph–an affectionate stepfather who refrains from approaching Mary intimately once she becomes pregnant–is recast as a vile rapist by deceit, Mary is morally blemished, and Jesus is a bastard who is (properly, apparently) ostracized. The whole thing seems carefully calculated to be as offensive as possible to Christians.

Knowing that Toledot Yeshu is likely a medieval text is helpful in understanding how and why someone would go to such lengths to produce such an aggressive refutation of the heart of Christian doctrine. I think this business is best understood against the backdrop of medieval Christian antisemitism and the Christian/Jewish polemic. The oppression and persecution of Jews in medieval Europe focused on Christian readings of the Hebrew Bible (the Old Testament) as a prelude to the arrival of the new messiah, viewing Judaism as made obsolete by Christianity. Worse, Jews are cast in Matthew as Christ’s killers (my choir, and many others worldwide, include a historical note/disclaimer in the program when performing Bach’s St. Matthew’s Passion for this very reason), the basis for various blood libel permutations. Confronted with daily hatred, discrimination, and violence, pre-modern Jews might have found the aggressive refutation of Christianity in Toledot Yeshu comforting, as it seeks to undermine the basis for their plight.

It’s worth noting, though, that there are more constructive examples of interreligious polemics in Jewish texts, my favorite of which is Yehuda Ha-Levi’s Sefer Ha-Kuzari. The book is structured as the imaginary journey of the king of the Kuzari people who, troubled by prophetic dreams, is looking for a new philosophy to live by. He talks to a Greek philosopher, an Edomite (= Christian), an Ishmaelite (=Muslim), and finally to “the friend,” who represents Judaism and is a proxy for Ha-Levi himself. Despite the fact that the work clearly posits Judaism as superior to all other philosophies, it is quite respectful to the other worldviews. Ha-Kuzari, as my hippy-dippy friends would probably phrase it, “vibrates from a much higher place” than Toledot Yeshu, and is an approach I want to believe that I would find considerably more appealing, but that’s easy to speculate, of course, from the standpoint of a 21st-century person with appreciation for free speech and the marketplace of ideas that would hardly be a factor in medieval Europe.

Thing is, the strategy of, not to put too fine a point on it, pissing on what is holiest to your adversary is still alive and well around us. One of the things I learned from my teacher and mentor Malcolm Feeley is that there is nothing new under the sun. Malcolm is a master of identifying thinking patterns and ideas across time and place, such as his masterful comparison between convict transports in the 17th century and electronic monitoring in the 21st. It is a mark of the many years I spent working with Malcolm and learning from him that I enjoy spotting these repetitive thinking patterns, and whenever I do, it makes me happy because it reminds me that I’m “Dumbledore’s man through and through.”

Anyway, it looks like some folks in current archaeological circles seem to vibrate from the same low place as Apion and the author of Toledot Yeshu. Archaeologist Brett Kaufman, whose work I’ve mentioned here before, has written a pretty depressing compendium of all the ways in which folks in his field who really should know better have been pretzeling themselves to deny Jewish indigeneity since October 7. It’s not just that the academic dishonesty and fabrication are shameful (though they are: archaeologists denying irrefutable material culture are making a mockery of their profession)–what I marvel at is the fact that people seem to feel that the current conflict and the massive suffering it is wreaking on all sides of the border should be resolved based on the kindergarten notion of “who was here first.” Nina Paley has expressed this grim ideology in this incredible animation:

Nina Paley, “This Land Is Mine”

[This wacky reasoning, in turn, reminds me of something I wrote about a long time ago: the way pro- and anti-same-sex marriage folks look for ideological support in biology. Every time a fruit fly is found to exhibit some sexual variation it’s weaponized as an argument for same-sex marriage; other evidence from the animal world is marshaled against it. Same story looking for sexual presentation in the animal kingdom. Why can’t the argument on behalf of same-sex marriage (which, by the way, CA voters will be invited to constitutionally affirm this week, and I hope you will, by voting “yes” on Prop 3) be made, simply, that we respect other people’s choices and lives, without getting into the question whether they are innate or predetermined? Why the preference for etiology over practicality? What difference does it make whether something is an “orientation” or a “lifestyle” if the people involved, in practice, on the ground, are happy and not hurting anybody else? But I digress.]

My frustration with the who-came-here-first answer to the current war is not just with the bad archaeologists who lie and twist. It’s also with the folks who have their history right but believe that ancient history should determine the conflict one way or the other. The idea that what seems right to you, or your birthright, or your God-given right, prevails over the realities on the ground, is terribly misguided. The situation right now is that there are multiple people with investment in, and claims to, the land, who must somehow learn to peacefully coexist if we don’t want the whole region to go up in smoke (it is already halfway there, to my great horror and sorrow).

This is what I would probably say to the Toledot Yeshu author: you can mock the virgin birth story all you like, defile your neighbors’ holiest figure, and draw some comfort from that as they defile your own history and heritage, but the endgame here is that everyone ends up filthy and disgraced. Or you can try to figure out a way to coexist with other people without hurting them or stepping all over them. The only question is who makes the choice to “vibrate from a higher place”, and how to make the benefits of putting an end to the besmirching outweigh the costs.